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Since the Web is freely accessible and since it is quite easy to copy material from one site to another, many myths have developed regarding the right to use copyrighted materials and trademarks. Without repeating the copyright and trademark rules established in previous chapters, here are some simple rules for websites.
1. Assume It's Protected
As a general rule, it is wise to operate under the assumption that all works are protected by either copyright or trademark law unless conclusive information indicates otherwise. A work is not in the public domain simply because it has been posted on the Internet (a popular fallacy) or if it lacks a copyright notice (another myth).
2. Read Click-Wrap Agreements
Do not assume that clip art, shareware, freeware or materials labeled "royalty-free" or "copyright-free" can be distributed or copied without authorization. Read the terms and conditions in the "click to accept" agreement (often called a click-wrap agreement) or "Read Me" files ordinarily accompanying such materials to be certain that your intended use is permitted. One company failed to honor the terms of a click-wrap agreement and was found liable for illegally distributing three volumes of software clip art. (Marobie-Fl, Inc. v. National Association of Fire Equipment Distributors, 983 F. Supp. 1167 (E.D. Ill. 1997).)
3. Remove Unauthorized Material
If someone complains about an unauthorized use at a website, the offending material should be removed immediately. In the case of unauthorized uploads, downloads or links, the webmaster should disable access to the offending material or link. This is not to imply that you should cave in to every complaint. However, the material should be removed during the period during which you investigate the claim and, if necessary, consult with an attorney. Attempts to "contain" the damage will likely help your case should it find its way into court. Continuing to use the offensive material after being notified may aggravate the claim and increase the chances of your being found liable --and increase the amount of damages you may have to pay.
Removal of infringing material is also an element of a 1998 law establishing that an Internet Service Provider (ISP, a company that provides Internet access to individuals and businesses) can avoid liability by following certain rules including speedy removal of infringing material. The Copyright Office also offers information about how to deal with notices of infringement. You'll find this info at http://www.copyright.gov/onlinesp/
4. Investigate Claims Promptly
If someone complains about unauthorized use, investigate the claim quickly and seek evidence of copyright ownership and copyright validity from the complaining person. The webmaster can verify the facts through copyright research. The webmaster must also investigate the transfer of the infringing material, if any, to and from the site. If copies were downloaded, how many and to whom? If copies were uploaded, by whom?
Below is a sample letter that can be adopted for use in response to a claim of infringement.
Sample Response to Infringement Claim
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Dear Ms. Crancastle:
I received your certified letter of May 1, 2000, in which you state that my website, Chihuahua Planet, contains an unauthorized reproduction of a photo entitled "Jimmy the Flying Chihuahua. " According to your letter, you are the copyright owner of the photo.
I have not had an opportunity to investigate your claim. However, pending resolution of the dispute, all copies of "Jimmy the Flying Chihuahua " have been removed from the site and access to the file containing the photo was disabled, thereby preventing downloading.
I would like to resolve this matter quickly and to do so will require some evidence of your copyright ownership. At your earliest convenience, please send me a copyright registration or some other evidence that you are the author of the photo. Once I have that information, I shall complete my investigation and promptly provide you with a response.
Sincerely,
Don Daly
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5. When in Doubt, Seek Permission
Many webmasters manage personal websites or sites for small organizations such as a local tennis team. Do all of the rules on copyright and permissions apply to these intimate or personal uses? For example, is permission needed to reproduce a photo taken by a club member, a friend or a relative? The short answer is: "Legally, yes, practically, maybe."
Copyright protection extends to any original work regardless of who created it, and permission is required for reproduction, display or distribution of the work. One of the main reasons for acquiring permission is to avoid a lawsuit. If the webmaster is confident that a friend or family member has consented to the use, the concern over a lawsuit diminishes, as does the need for a formal written permission agreement. Oral consents are valid, although sometimes difficult to prove.
But, if you are in doubt about a use, always seek a written permission, even if the material comes from a friend or relative. Formal permission agreements are provided at the end of this book. However, in cases of cooperative friends and relatives, an informal release can be used, such as the following sentence:
I am the owner of rights to ___________________________________________
[title of work] and I authorize its display and
reproduction at the ___________________________________________________
[name of website] website located at _________________________________
[insert URL for site] for a period of _________________________________
[insert length of time].
If you want to include additional items in the agreement, such as a requirement that a credit line for the work appear at the site, you can add them to this brief agreement.
EXAMPLE: Sally is the webmaster for the Jefferson Elementary School and intends to post student paintings. Sally has the parent of each child sign a one-sentence permission agreement stating, "I authorize the display and reproduction of the artwork entitled___________________________, credited to my child_____________________________, at the Jefferson Elementary School website for a period of one year."
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The Likelihood of Getting Caught |
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As Web commerce increases, so does the likelihood of being caught for unauthorized uses. Many companies such as McDonald's, MTV, Levi's, Mattel, Walt Disney and Coca-Cola aggressively patrol the Web for infringement. New technology makes it possible for copyright owners to encode music, artwork, photographs and text with digital tags or marks that allow rapid tracking. Companies such as Markwatch (www.markwatch.com ) function as cyber bounty hunters. In addition, artist and writer organizations such as the Association for the Protection of Internet Copyright (also known as WebPossee, at a-w.org) seek out violations. If a website is controversial and angers some visitors, they may report perceived violations to copyright or trademark owners. Disgruntled employees are also common sources of infringement reports.
Besides the fact that the Web abounds with efficient ways of sniffing out copyright violations, the general rule is that the chances of an unauthorized use being discovered will increase as the site becomes more popular. Therefore, if the goal at a site is to increase traffic count, unauthorized uses should be avoided from the start as they rarely justify the potential aggravation and financial loss. | |
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©2005-2009 The Board of Trustees
of the Leland Stanford Junior University. With the exception of the Nolo Copyright and Fair Use Overview, this work is
licensed under a Creative Commons
Attribution-Noncommercial 3.0 United States License.